DEPARTMENT OF THE NAVY
 NAVAL DISCHARGE REVIEW BOARD (NDRB)
                     DISCHARGE REVIEW
                   DECISIONAL DOCUMENT

  ex-AN, USNR
Docket No. ND04-00117

Applicant’s Request

The application for discharge review was received on 20031022.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general/under honorable conditions.  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040712.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/UNSATISFACTORY PARTICIPATION IN THE READY RESERVE, authority: NAVMILPERSMAN, Article 3630800.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “After completing my active duty time I was to report for the Reserves to drill with Reserve unit but while on active duty I had cancer in my left arm after my surgery.  I stayed and completed my time on active duty and received a Honorable Discharge but did not finish my Reserve time so I received a Other Than Honorable Discharge from the Reserves because I was trying to get my disability started I was told if I went to the Reserve I would not get my disability so I did not go.  Please upgrade my reserve discharge.”

2.  “The reason why I’m asking you to upgrade my Reserve Discharge is that I’m trying to join the Memphis Police Department in January, but I need my Reserve discharge upgraded before I can join.  Please upgrade my discharge as soon as possible send it in the mail or fax to me at (xxx) xxx-xxxx.  Thank you.  Signed (Applicant).”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

VA rating
Copy of DD Form 214
Applicant’s Administrative Remarks Service Record page

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Inactive: None
	Active:   None

Period of Service Under Review:

Date of Enlistment:  880705		Date of Discharge:  921107

Length of Service (years, months, days):

	Active:    02  11  27
	Inactive:  01  04  06

Age at Entry:  19			Years Contracted:  8

Education Level:  12			AFQT:  24

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.1 (7)	Behavior:  3.43 (6)		OTA:  3.2

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, NDSM, MUC, SWASM w/Bronze Star

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/UNSATISFACTORY PARTICIPATION IN THE READY RESERVE, authority:  NAVMILPERSMAN, Article 3630800.

Chronological Listing of Significant Service Events:

880830:	Commenced 36 months of active duty under the Active Mariner Program.

890207:	Naval Hospital Portsmouth, VA:  Brief history:  Slowly enlarging mass left forearm.  PRE-OP Diagnosis:  Ganglion left forearm.  OP Findings:  Solid mass left forearm ? Schwannoma.  Microscopic Diagnosis:  Atypical Fibrohistiocytic Tumor.  Malignant fibrous histiocytoma has to be ruled out.  This case was sent to AFIP Soft Tissue Pathology with consultation.

890209:	Medical Record Operation Report:  Operative Diagnoses:  Ganglion Left Forearm.  Operation Performed:  Excision Mass Left Foreman.

890403:	Lab Service, Naval Regional Medical Center, Portsmouth, VA:  Left forearm:  Malignant fibrous histiocytoma.

8900414:	NAVMEDCOM MIDLANTREG Radiographic Report:  Pt 20 year old black male who first noticed a mass in the proximal left forearm in late summer of 1988.  In Feb 89, this was removed by surgeon on the USS CORAL SEA, and was noted to be a superficial lesion only of presumed benign nature.  Pathology review here at Portsmouth was suspicious for malignancy and review further at the AFIP confirmed this to be a malignant fibrous histiocytoma.  
	Discussed with pt the recommendations of the Orthopedic and Radiation Oncology Department.  Pt in our opinion is a candidate for conservative therapy to spare the limb, with a planned reexcision and postoperative treatment with radiation therapy.  It has been our experience as well as the experience of others that such therapy is delivered with the least morbidity when given a combined modality with both brachytherapy and external beam therapy.  He is tentatively scheduled for reexcision and Iridium-192 boost placement next week, to be followed by approximately 4 or 5 weeks of external radiation. Pt in complete agreement to proceed with therapy, and we will do so barring any developments in the interim.

890420:	Medical Board, Naval Hospital, Portsmouth, VA:  Primary diagnosis:  Fibrous-Histio-cytoma, malignant, surgically treated.  Placed on limited duty until 20 Apr 90.  He should engage in no duties which require him to be away from this treatment facility, however, he will not be restricted as to his activities or type of duty which he performs.

890421:	Radiation Oncology:  Pt had 7 hollow nylon tubes loaded with iridium today.  Dosimetry calculations carried out yesterday with the dummy seeds in place showed a does rate of 45 rads per hour at 0.5 cm from the plane of the implant.  The placement went without complications, and pt is currently doing well, hospitalized on Ward 13C.  The implant was inserted at 1230 on 21 Apr 89 and will be removed on 23 Apr at 0950.  

890517:	Radiation Oncology:  First treatment.

890724:	Radiation Oncology Follow-up:  Assessment – Stable.

900313:	Found fit for full duty.  Follow-up reevaluation 6 months.

901016:	NJP for violation of UCMJ, Article 128:  Assault of AT2 P_, USN on 90OCT16.
	Award:  Restriction and extra duty for 30 days, reduction to E-2.  No indication of appeal in the record.

910826:	Released from active duty and transferred to the Naval Reserve to complete remaining obligated service, having served 2 years, 11 months, and 27 days and received a characterization of service as Honorable.

910915:	Enlistment contract into the USNR documents acknowledgement of the requirement to participate in 48 scheduled drills and not less than 14 days of annual training per year for 6 years upon completion of initial active duty training.

920423:	Service record entry whereby MM2 M_ J. D_ attempted to contact the Applicant at most recent listed phone number concerning his special active duty for training orders.  Current phone number is incorrect or has been disconnected.

920605:	Letter of intent to administratively separate under other than honorable conditions for the failure to participate in reserve training was sent via certified mail to the last known address, return receipt requested.  An unknown individual receipted for letter by return signature but Applicant failed to acknowledge the contents.  [The failure to acknowledge official certified mail or is undeliverable to the member's last known address or the next of kin, the separation process shall continue (MILPERSMAN 3640200.]

921028:	Commanding Officer recommended discharge under other than honorable conditions by reason of unsatisfactory participation in the ready reserve as evidenced by six unexcused absences from scheduled drills on 05/06 October 1991 and 10 November 1991 and also for failing to report for 12 days special active duty by 0730 on 1 May 1991. 

921106:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of unsatisfactory participation in the Ready Reserve as evidenced by failure to maintain satisfactory drill participation.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19921107 under other than honorable conditions for unsatisfactory participation in the Ready Reserve (A).  The Board presumed regularity in the conduct of governmental affairs (B).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

Issue 1.  When the service of a member of U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An Under Other Than Honorable Conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by his lack of participation by multiple drills and annual training.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant contends that he “received a Honorable Discharge” and did not finish his reserve obligation because he was told he “would not get my disability.”  The record shows, however, that the Applicant was not discharged, but Released from Active Duty on his DD214 dated 910826.  Further, the Applicant’s enlistment contract on 910915 documents acknowledgement of the requirement to participate in 48 scheduled drills and not less than 14 days of annual training per year for 6 years upon completion of initial active duty training.  Therefore, the statements and submissions of the Applicant were not sufficient to mitigate the failure of the Applicant to participate as required in the Reserves.  Relief denied.

2.  The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted.  There is no evidence of impropriety or inequity in the Applicant’s discharge.  The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  Therefore, relief is denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 04 Mar 93, Article 3630800, SEPARATION OF ENLISTED PERSONNEL BY REASON OF UNSATISFACTORY PARTICIPATION IN THE READY RESERVE.

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT

If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive before submitting such a complaint.  The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness.  You may view DoD Directive 1332.28 and other Decisional Documents by going online at “afls14.jag.af.mil”.  

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023